Fisheries Management
Alleged Misconduct of Members and Staff of the Western Pacific Fishery Management Council Gao ID: GAO-09-508R May 20, 2009In recent years, several Hawaii-based conservation advocacy organizations and others have raised a variety of concerns about the conduct of members and staff of the Western Pacific Fishery Management Council (Western Pacific Council) related to lobbying and conflicts of interest, among other things. The Western Pacific Council is one of eight regional fishery management councils established by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The council is responsible for developing management plans for fisheries in federal waters off Hawaii, American Samoa, Guam, the Northern Mariana Islands, and other U.S. Pacific islands. The council has 13 voting members--including 5 designated state and federal fishery managers and 8 members of the public with expertise in commercial and recreational fishing and marine conservation who are appointed by the Secretary of Commerce. The council employs an executive director with a staff of 13 to assist in the performance of its functions. An attorney from the National Oceanic and Atmospheric Administration (NOAA), an agency within the Department of Commerce, advises the council on regulatory and procedural matters and attends all council meetings. The Western Pacific Council currently finances all of its operations with grants from the Department of Commerce. As a federal grant recipient, the council is subject to Office of Management and Budget (OMB) requirements, such as OMB Circular A-122. Among other things, these requirements prohibit the use of federal funds to engage in certain lobbying activities at both the federal and state level. However, they do not prohibit the council from using federal funds to provide technical and factual presentations to federal and state legislators when asked to do so. Public council members are exempt from federal criminal conflict of interest law regarding participation in matters affecting their financial interests when they make decisions on council matters as long as they are in compliance with the financial disclosure and recusal requirements set out in the Magnuson-Stevens Act and its implementing regulations. Council members may not vote on matters that would have a "significant and predictable effect" on the financial interests they are required to disclose, but they may participate in deliberations on such matters if they recuse themselves and identify the interest that would be affected. These requirements help fulfill one of the purposes of the act, which is to encourage the participation of a wide range of stakeholders--including those with commercial fishing interests--in developing fishery management plans.
Overall, we found little or no evidence to substantiate many of the allegations related to lobbying, conflicts of interest, the use of and accounting for federal funds, and council operations, in part because some of the allegations were factually inaccurate. However, we identified some concerns related to lobbying, the use of and accounting for federal funds, and council operations. (1) Lobbying. We found conflicting evidence about whether the council had lobbied a member of Congress, as well as evidence that the council had delivered some testimonies that could be considered lobbying because they included statements of the council's opposition to pending legislation. According to OMB Circular A-122, federal grantees cannot use federal funds to attempt to introduce, enact, or modify legislation through communication with Congress, but are allowed to use federal funds to present technical and factual information related to the performance of their grant-funded activities in response to a documented request by a legislative body, its members, or staff. However, the council does not maintain such documentation. Consequently, we are recommending that NOAA require the council to maintain documentation of all requests for input from federal and state legislators. (2) Use of and accounting for federal funds. We determined that the council had made and accounted for cash payments for per diem travel costs to participants at a series of conferences. Generally speaking, such cash payments are not advisable because they are vulnerable to risk of loss or unauthorized use. Consequently, we are recommending that NOAA direct the council to pay per diem costs for meeting participants by check to the extent practicable. (3) Council operations. We identified various council practices that limit transparency regarding the council's contacts with federal and state legislators and its policies for providing public access to council records. Consequently, we are recommending that NOAA work with the council to implement a variety of actions to help improve the transparency of the council's operations, such as notifying NOAA regional counsel before meeting with federal and state legislators or testifying before one of their committees, and maintaining copies of documents available for public inspection, such as council meeting minutes and briefing book materials prepared for council members in advance of council meetings, on its Web site.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-09-508R, Fisheries Management: Alleged Misconduct of Members and Staff of the Western Pacific Fishery Management Council
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GAO-09-508R:
United States Government Accountability Office:
Washington, DC 20548:
May 20, 2009:
The Honorable Henry A. Waxman:
Chairman:
Committee on Energy and Commerce:
House of Representatives:
Subject: Fisheries Management: Alleged Misconduct of Members and Staff
of the Western Pacific Fishery Management Council:
Dear Mr. Chairman:
In recent years, several Hawaii-based conservation advocacy
organizations and others have raised a variety of concerns about the
conduct of members and staff of the Western Pacific Fishery Management
Council (Western Pacific Council) related to lobbying and conflicts of
interest, among other things. The Western Pacific Council is one of
eight regional fishery management councils established by the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The council is responsible for developing management plans for
fisheries in federal waters[Footnote 1] off Hawaii, American Samoa,
Guam, the Northern Mariana Islands, and other U.S. Pacific islands. The
council has 13 voting members--including 5 designated state and federal
fishery managers and 8 members of the public with expertise in
commercial and recreational fishing and marine conservation who are
appointed by the Secretary of Commerce.[Footnote 2] The council employs
an executive director with a staff of 13 to assist in the performance
of its functions. An attorney from the National Oceanic and Atmospheric
Administration (NOAA), an agency within the Department of Commerce,
advises the council on regulatory and procedural matters and attends
all council meetings.
The Western Pacific Council currently finances all of its operations
with grants from the Department of Commerce. As a federal grant
recipient, the council is subject to Office of Management and Budget
(OMB) requirements, such as OMB Circular A-122.[Footnote 3] Among other
things, these requirements prohibit the use of federal funds to engage
in certain lobbying activities at both the federal and state level.
However, they do not prohibit the council from using federal funds to
provide technical and factual presentations to federal and state
legislators when asked to do so.
Public council members are exempt from federal criminal conflict of
interest law regarding participation in matters affecting their
financial interests when they make decisions on council matters as long
as they are in compliance with the financial disclosure and recusal
requirements set out in the Magnuson-Stevens Act and its implementing
regulations. Council members may not vote on matters that would have a
"significant and predictable effect" on the financial interests they
are required to disclose, but they may participate in deliberations on
such matters if they recuse themselves and identify the interest that
would be affected. These requirements help fulfill one of the purposes
of the act, which is to encourage the participation of a wide range of
stakeholders--including those with commercial fishing interests--in
developing fishery management plans.
You asked that we determine the validity of allegations against the
Western Pacific Council related to (1) lobbying, (2) conflicts of
interest, (3) the use of and accounting for federal funds, and (4)
council operations. In conducting our work, we reviewed relevant laws
and regulations, Commerce Department guidance, and council policies and
procedures. We also reviewed council records--such as meeting minutes,
publications, videos, testimony, financial disclosure forms, financial
records, audit reports, and grant documents--and Hawaii state
legislation and legislative reports. We interviewed individuals that
have raised concerns about the council's conduct; officials from NOAA's
National Marine Fisheries Service (NMFS); council members and staff;
and others, such as Hawaii state legislators alleged to have knowledge
of the council's misconduct. We conducted our review between October
2008 and May 2009 in accordance with generally accepted government
auditing standards. Those standards require that we plan and perform
the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our audit
objectives. We believe that the evidence obtained provides a reasonable
basis for our findings and conclusions based on our audit objectives.
Results in Brief:
Overall, we found little or no evidence to substantiate many of the
allegations related to lobbying, conflicts of interest, the use of and
accounting for federal funds, and council operations, in part because
some of the allegations were factually inaccurate. However, we
identified some concerns related to lobbying, the use of and accounting
for federal funds, and council operations.
* Lobbying. We found conflicting evidence about whether the council had
lobbied a member of Congress, as well as evidence that the council had
delivered some testimonies that could be considered lobbying because
they included statements of the council's opposition to pending
legislation. According to OMB Circular A-122, federal grantees cannot
use federal funds to attempt to introduce, enact, or modify legislation
through communication with Congress, but are allowed to use federal
funds to present technical and factual information related to the
performance of their grant-funded activities in response to a
documented request by a legislative body, its members, or staff.
However, the council does not maintain such documentation.
Consequently, we are recommending that NOAA require the council to
maintain documentation of all requests for input from federal and state
legislators.
* Use of and accounting for federal funds. We determined that the
council had made and accounted for cash payments for per diem travel
costs to participants at a series of conferences. Generally speaking,
such cash payments are not advisable because they are vulnerable to
risk of loss or unauthorized use. Consequently, we are recommending
that NOAA direct the council to pay per diem costs for meeting
participants by check to the extent practicable.
* Council operations. We identified various council practices that
limit transparency regarding the council's contacts with federal and
state legislators and its policies for providing public access to
council records. Consequently, we are recommending that NOAA work with
the council to implement a variety of actions to help improve the
transparency of the council's operations, such as notifying NOAA
regional counsel before meeting with federal and state legislators or
testifying before one of their committees, and maintaining copies of
documents available for public inspection, such as council meeting
minutes and briefing book materials prepared for council members in
advance of council meetings, on its Web site.
Background:
Fishery management issues can be highly contentious. The interests of
fishermen, fish processors, coastal communities, the government, and
environmental organizations are often different and sometimes mutually
incompatible. Such differences can lead to adversarial relationships
among those interested in marine resource management. Over the years,
differences have arisen, and have been expressed in the press and
through complaints filed with the Commerce Department's Office of
Inspector General, between the Western Pacific Council and members of
groups who hold different views regarding the management of marine
resources in waters within the council's jurisdiction.
The Magnuson-Stevens Act has established standards that regional
fishery management councils, including the Western Pacific Council,
must follow when developing fishery management plans. For example, the
council's fishery management plans must prevent overfishing while
achieving, on a continuing basis, the optimum yield from the fishery.
In addition, the act allows the council to consider historical fishing
practices and the cultural and social practices of affected communities
when developing fishery management plans. Once the council prepares a
plan, it submits the plan to the Secretary of Commerce for approval.
Once approved, the plan is implemented by NMFS and enforced by NMFS's
Office for Law Enforcement, the U.S. Coast Guard, and local enforcement
agencies.
The Western Pacific Council currently finances all of its operations
with grants from the Department of Commerce. In fiscal year 2007, for
example, the council received $4.4 million from NOAA, according to
NOAA. As a federal grant recipient, the council is subject to OMB
Circular A-122 rules on the use of federal grant funds. Specifically,
OMB Circular A-122 sets forth cost principles for nonprofit federal
grantees and, among other things, disallows the use of federal grant
funds to (1) attempt to influence the introduction, enactment, or
modification of federal or state legislation through contact with
legislators or legislative staff members, or (2) attempt to influence
the introduction, enactment, or modification of federal or state
legislation through grassroots lobbying.[Footnote 4] Under OMB Circular
A-122, the council may provide technical and factual presentations on
topics directly related to the performance of the council's grant
through hearing testimony, statements, or letters to a legislature, its
members, or staff in response to a documented request.
According to the Commerce Department, a violation of these cost
principles could result in (1) grant termination; (2) a special
condition for future awards, such as education or training for the
grantee; or (3) disbursement of the grant on a reimbursement basis
only, meaning that the grantee would have to show that costs had been
incurred in line with the cost principles before receiving federal
grant funds to cover these costs. However, because the Magnuson-Stevens
Act requires the Secretary of Commerce to fund the councils,
terminating a council's grant is not a realistic option. Placing a
condition on mandatory funding is also not a realistic option because
the councils must be funded, even if a condition is violated. Finally,
while requiring a council to seek reimbursement for costs would place
an administrative burden on the council that might encourage
compliance, there may be little, if any, cost actually associated with
some restricted lobbying activities. In addition, a reimbursement
approach could require NOAA to allocate resources to grant oversight
that may not be commensurate with the grant amounts at issue.
The Magnuson-Stevens Act and its regulations encourage representation
of diverse interests on the councils, including commercial and
recreational fishing interests. To allow those with financial interests
in fisheries or fishery-related activities to participate on the
councils, the act generally exempts public council members from federal
conflict of interest law regarding participating in matters affecting
their financial interests when they deliberate and vote on council
matters, as long as they are in compliance with alternative provisions
specifically applicable to council members.[Footnote 5] These
provisions require public members to report any interest in a
harvesting, processing, lobbying, advocacy, or marketing activity
within any fishery over which the council has jurisdiction. Doing so
allows them to vote on any matter that will not have an expected and
substantially disproportionate benefit to their financial interests and
is not primarily a matter of individual concern. If the decision would
have such an effect, then the council member may not vote. However, the
member may participate in discussions and deliberations regarding the
matter after recusing himself and identifying the financial interest
that would be affected. If the matter is primarily of individual
concern, then the council member may not participate in voting,
deliberations, rendering advice, and making recommendations. Commerce
Department guidance defines "matters primarily of individual concern"
as "those matters that affect a small number of identified, or easily
identifiable, parties, rather than broad policy matters affecting many
entities."
The Magnuson-Stevens Act requires each fishery management council to
publish a Statement of Organization, Practices, and Procedures (SOPPs)
for carrying out the council's functions under the act. Among other
things, the SOPPs provide information on the councils' accounting and
budgetary control procedures and their operating policies and
procedures.
Lobbying:
We found limited and inconclusive evidence regarding whether members
and staff of the Western Pacific Council had engaged in lobbying
activities in support of legislation or policy positions. These
allegations included claims that the council had lobbied members of the
executive branch, members of Congress, and members of the Hawaii state
legislature; testified before Congress and the Hawaii state
legislature; and organized grassroots lobbying efforts.
* Lobbying members of the executive branch. We examined allegations
that the council had communicated with the Secretary of Commerce and
the President's Council on Environmental Quality regarding the
council's opposition to the executive orders establishing the
Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve[Footnote 6]
and its subsequent designation as a marine sanctuary. The council's
executive director acknowledged communicating the council's opposition
to the fishery closures and no-anchoring provisions in the executive
orders to the Secretary of Commerce and the Council on Environmental
Quality. However, such contacts do not constitute prohibited lobbying
under OMB rules. Specifically, OMB Circular A-122 does not bar council
members and staff from communicating their views within the executive
branch on executive branch matters.
* Lobbying members of Congress. We examined allegations that the
council had attempted to lobby members of Congress. We found limited
and conflicting evidence regarding these allegations. OMB Circular A-
122 disallows the use of federal funds for efforts to introduce, enact,
or modify legislation through communication with members of Congress.
However, OMB Circular A-122 does allow the use of federal funds to
present technical and factual information related to grant performance
in response to a documented request by a legislative body, its members,
or staff. Council officials acknowledged having met with members of
Congress and their staffs, but said that they did so in response to
requests for information. They also acknowledged having made courtesy
visits to members of the Hawaiian congressional delegation while in
Washington, D.C., but denied that these visits were used to lobby
members of Congress regarding pending legislation. We interviewed a
former member of Congress who believed that council representatives had
come to his office without an invitation and lobbied him regarding
pending legislation. According to the council's executive director, the
legislator had invited council representatives to meet with him and the
meeting did not involve lobbying. We were unable to resolve the
conflicting recollections of this incident. We were also unable to
determine whether the council's contacts with members of Congress were
in accordance with OMB Circular A-122 because, according to council
officials, they do not maintain documentation that would show the date
and reason for each congressional contact, nor do they routinely notify
NOAA regional counsel of these contacts. In addition, council officials
told us that each year, council members and staff received a copy of
the Commerce Department's rules of conduct for council members and
employees, including rules on lobbying, but only new council members
received training on these rules.
* Lobbying members of the Hawaii state legislature. We investigated
several allegations that the council had drafted legislation and
contacted legislators regarding bills before the Hawaii state
legislature. We also investigated an allegation that a council
contractor had lobbied state legislators on the council's behalf in
support of bills resulting from a series of conferences--known as
Puwalu--that the council organized and cosponsored to help increase the
participation of native Hawaiians in the fishery management process.
However, we found no evidence to support these allegations. To
determine the validity of these allegations, we interviewed council
staff, who denied having drafted state legislation or lobbied state
legislators. The council's executive director said that the council has
provided information to state legislators at their request. However,
the council does not keep documentation that would show the date and
reason for each contact, nor do they routinely notify NOAA regional
counsel of these contacts. Council staff also denied having contracted
with the organizer of the Puwalu series to lobby the state legislature,
and our review of the council's contracts with the Puwalu organizer
showed that they did not include lobbying activities. We also
interviewed Hawaii state legislators whom the council and the council
contractor had allegedly lobbied. One legislator said that the council
had not drafted the bill in question and no legislator could recall
having been lobbied by the council regarding pending legislation.
Another legislator told us that the contractor had lobbied him in
support of legislation resulting from the Puwalu series, but identified
herself as representing a group of native Hawaiian elders--not the
council.
* Testifying before Congress and the Hawaii state legislature. We
investigated several allegations that the council had testified before
Congress and the Hawaii state legislature in opposition to various
pieces of legislation and had also written testimony for fishermen to
deliver before the Hawaii state legislature. We found evidence that the
council had delivered some testimonies that could be considered
lobbying, but we did not find evidence to substantiate allegations that
the council had written testimony for fishermen. OMB Circular A-122
disallows the use of federal funds for expenses associated with
testimony that is unsolicited or, even if solicited, is not purely
technical or factual and directly related to the performance of a
federal grant. Moreover, under OMB Circular A-122, the request to
testify must be documented for any expenses associated with the
testimony to be allowable. While the council's executive director told
us that council members and staff had testified at the request of
congressional and state legislative committees, council staff kept no
documentation of these requests, nor did they routinely notify NOAA
regional counsel of such requests. Therefore, we could not determine
whether the council had been asked to testify. Such documentation is
particularly important in the case of testimony before Hawaii state
legislative committees because these committees allow solicited and
unsolicited testimony, according to state legislators we spoke with.
Further, among the testimonies we reviewed, we found several that
included statements of advocacy for particular policy positions, in
addition to technical and factual information. Specifically, we found
that, in 1999 and 2000, the council's chairman testified at least five
times before U.S. congressional and Hawaii state legislative
committees. These testimonies were largely factual, but also included
statements of the council's opposition to pending legislation. As the
agency administering the council's grant, NOAA is responsible for
implementing the requirements of OMB Circular A-122. Therefore, it
would be up to NOAA to determine whether federal funds were used for
lobbying and, if so, what the appropriate remedy to pursue would be.
* Organizing grassroots lobbying. We looked into several allegations
that the council had engaged in efforts to get others to influence
federal and state legislation, primarily through the media and the
Puwalu series of conferences. However, we could find no evidence to
support these claims. Such conduct would violate OMB Circular A-122,
and any associated costs would be unallowable expenditures of federal
grant money. Specifically, we were unable to substantiate allegations
that the council used the media to organize grassroots lobbying because
the alleged instances appeared to involve an executive order rather
than legislation, and OMB Circular A-122 does not prohibit attempting
to influence executive branch decisions. In addition, we were unable to
find evidence to substantiate allegations related to the Puwalu series.
Specifically, council staff and the series organizer told us that the
series was not intended to produce legislation, and the persons making
the allegations provided no solid evidence to the contrary.
Conflicts of Interest:
We found no evidence to support allegations that public council members
inappropriately voted or deliberated on matters concerning their
financial interests.
* Council members voting on decisions in which they had conflicts of
interest. We reviewed allegations ranging from general concerns that
public council members with significant commercial fishing interests
have benefited from council decisions, to concerns that a public
council member could have personally benefited from a specific decision
on which he had voted. However, we found no evidence to substantiate
these allegations. The Magnuson-Stevens Act requires public council
members to disclose their financial interest in harvesting, processing,
lobbying, advocacy, or marketing activities within any fishery over
which the council has jurisdiction. Further, such a council member may
not vote on a matter that would have a "significant and predictable
effect" on such an interest, defined as a close causal link between the
decision and an "expected and substantially disproportionate benefit"
relative to the interest of other participants in the fishery. NOAA
regulations define "expected and substantially disproportionate
benefit" to mean a greater than 10 percent interest in the total
harvest of the fishery or sector of the fishery in question; in the
fishery's harvesting, marketing, or processing activities; or in the
vessels using the same gear type. Council members also may not vote on
matters primarily of individual concern. During our review, one person
who had raised concerns about conflicts of interest told us he was
aware of the conflict of interest requirements but disagreed with them.
Specifically, he said he believed that council members should not be
allowed to vote on matters in which they have an interest, regardless
of the size of their interest.
* Council members participating in deliberations on decisions in which
they had conflicts of interest. We reviewed allegations that when
public council members recused themselves from voting on decisions in
which they had conflicts of interest, they still participated in, and
in some cases led, council deliberations on those matters. However, we
determined that such participation is generally permissible.
Specifically, the Magnuson-Stevens Act allows public council members to
participate in deliberations on matters in which they have conflicts of
interest after notifying the council that they will not be voting on
the matter and after identifying the financial interest that would be
affected. According to Commerce Department guidance, a recusal from
voting may be announced at any time before voting on the matter.
However, we found that it was not always clear from council meeting
minutes whether members who had recused themselves had identified the
financial interest that would be affected, as required by the Magnuson-
Stevens Act. Finally, Commerce Department guidance states that a member
disqualified from voting on a matter primarily of individual concern
may not participate in deliberations on the matter. NOAA Regional
Counsel for the Pacific Islands Region told us that there had been no
violations of this prohibition since at least November 2005.[Footnote
7]
The Use of and Accounting for Federal Funds:
We found no evidence to support allegations that the Western Pacific
Council improperly used and accounted for federal funds.
* Improperly using federal funds. We reviewed allegations that the
council improperly used federal funds by organizing and sponsoring the
Puwalu series. We found no evidence to support these allegations. One
of the purposes of the Magnuson-Stevens Act is to ensure that the
councils prepare, monitor, and revise fishery management plans in a way
that will enable a broad range of stakeholders to participate in and
advise on the establishment and administration of those plans. The act
also encourages councils to develop ecosystem-based approaches to
fisheries management. According to council officials, the purpose of
the five Puwalu conferences, which were held between August 2006 and
November 2007, was to engage native Hawaiians in resource management
issues and encourage practitioners of native Hawaiian fishing
traditions to become more involved in the development of an ecosystem-
based approach to fisheries management. In the opinion of officials at
NMFS's Pacific Island Regional Office, the series was well thought out
and clearly in line with the approved uses and goals of the council's
multiyear grant.
* Improperly accounting for federal funds. We reviewed general
allegations that the council had improperly accounted for federal
funds. We found no evidence to substantiate these allegations.
Specifically, our review of the council's 2006 and 2007 independent
auditor reports found that the council received unqualified audit
opinions for both years. Further, the independent auditor did not
identify any significant deficiencies in the design and operation of
controls that would adversely affect the council's ability to prevent
or detect financial reporting misstatements, or to comply with
requirements applicable to each major council program and OMB Circular
A-133.[Footnote 8] Similarly, our limited review of council
expenditures found that they were supported by adequate documentation
and properly recorded.[Footnote 9]
* Inappropriately distributing cash. We reviewed allegations that the
council distributed cash in white envelopes to certain participants of
the Puwalu series in an attempt to buy loyalty to the council. We found
that a total of 97 participants received cash payments at four of the
five Puwalu conferences; however, we found no evidence to suggest that
these payments were made to buy loyalty. Instead, they represented the
participants' per diem for meals and incidental travel expenses to
attend the conferences. Council staff said that they chose to make
these payments in cash instead of by check because they believed it was
the best way to maximize the attendance of native Hawaiian cultural
practitioners, many of whom live off the land using traditional
Hawaiian practices and may not have bank accounts or the identification
necessary to cash checks. We reviewed seven cash payments and found
that they were properly supported and accounted for. However, generally
speaking, such cash payments are not advisable because, according to
our Standards for Internal Control in the Federal Government,[Footnote
10] cash is vulnerable to risk of loss or unauthorized use.
We determined that allegations related to the following matters were
based on incorrect information.
* Mismanaging community demonstration project grants. We reviewed
allegations that the council had mismanaged grants made under the
Western Pacific Community Demonstration Project Program (CDPP). We
determined that NOAA, not the council, is responsible for managing
these grants. The Magnuson-Stevens Act authorizes the Secretary of
Commerce to make grants to eligible western Pacific communities, based
on recommendations from the council, for the purpose of establishing
demonstration projects to foster and promote traditional indigenous
fishing practices. Once projects are selected, NOAA provides funds
directly to the grantees. According to a NOAA official we spoke with,
NOAA has sole responsibility for overseeing the CDPP grants.
* Using certain enforcement fines. We reviewed allegations that the
council receives money from enforcement fines that it can spend however
it wants. We determined that this allegation is factually inaccurate.
The 2006 amendments to the Magnuson-Stevens Act established the Western
Pacific Sustainable Fisheries Fund, which includes fines imposed on
foreign vessels in waters off unincorporated areas under the council's
jurisdiction, and specifies how these monies are to be used. As of
March 2009, the council had received no monies from this fund,
according to NOAA officials.
* Paying profit sharing to council staff. We reviewed allegations that
council staff were receiving profit sharing, or a percentage of the
grant funds that go to the council. We found that these allegations
were factually inaccurate. NOAA officials told us that the term "profit
sharing" is used to describe the amount of the agency's annual
contribution to staff retirement plans and is not based on any kind of
profit or percentage of the council's funding.
* Compensating the executive director. During our review, we heard
allegations that the executive director is paid at an inappropriate
level. We found that these allegations were factually inaccurate.
According to NOAA regulations, the annual pay rate of council staff
members must be consistent with the pay rates established for General
Schedule (GS) federal employees and the Alternative Personnel
Management System for the U.S. Department of Commerce. The council has
set the executive director's pay at a rate in the range allowed for a
GS-15 federal employee. In addition, the council has used the
discretion allowed for in the regulations to adjust staff pay rates
based on the cost of living differential for Hawaii.
* Identifying and accounting for Puwalu funding. We reviewed
allegations that the council was unable to identify the funding sources
it used to organize and sponsor the Puwalu series and unable to account
for the use of those funds. However, the council was able to provide
this information to us and we found no irregularities. Specifically,
our review of 14 Puwalu series expenditures noted that they were
charged to the appropriate grants and properly accounted for.[Footnote
11]
Council Operations:
We found no evidence to support allegations that the Western Pacific
Council improperly denied the public access to records, and we found
some evidence to support allegations that the council delayed providing
information requested by an individual council member. We also found
that the council has not clearly defined its policies regarding access
to its records.
* Denying the public access to council records. We reviewed allegations
that the council denied the public access to council records. We found
no evidence to support these allegations. The Magnuson-Stevens Act
requires that a council's administrative record, including meeting
minutes, and records or other documents made available to or prepared
for or by the council in connection with council meetings, be made
available for public inspection and copying in the council office. The
council makes these records, such as council meeting minutes and
briefing book materials prepared for council members in advance of
council meetings, available at its office. However, it has posted few
of these records on its Web site. In contrast, the Pacific Fishery
Management Council's Web site contains meeting minutes from 2001 to the
present and briefing book materials from 2002 to the present, and the
North Pacific Fishery Management Council's Web site contains meeting
minutes from 2000 to the present. In addition, the executive director
told us that it is the council's policy to require members of the
public to file a Freedom of Information Act (FOIA) request to obtain
information that is not normally made available to the public. However,
we found that the council's SOPPs do not fully communicate these
policies. Specifically, the SOPPs state that summary minutes of council
meetings are available to the public for inspection in the council
office. However, the SOPPs do not mention the availability of other
records or documents for public inspection, nor do they mention that
members of the public must file a FOIA request to obtain information
that is not normally made available to the public for inspection. By
not providing a complete statement of its records access policy, the
council may be causing confusion about what records are available and
how to access them.
* Withholding information requested by individual council members. We
reviewed allegations that council staff had delayed providing budget
information requested by individual council members. In the instance we
reviewed, we found that it took council staff about 8 weeks to provide
the requested information--copies of the council's 2006 and 2007 annual
budgets and the council's 2006 audit report. Shortly thereafter, the
council member decided to file a FOIA request to get additional
information. The Magnuson-Stevens Act and its regulations do not
specifically address council member requests for records. However, the
executive director told us that council members have unrestricted
access to council records. In addition, the council's SOPPs state that
council members desiring special reports or information should request
them from the council chair or executive director. According to the
executive director, it can be time-consuming for staff to prepare
detailed documents that are not normally prepared for the council. The
executive director also expressed concern about safeguarding sensitive
information, such as staff compensation, that the public does not
normally receive. However, we found that the council has no written
policies and procedures for responding to council members' requests for
information, including the time frames for responding and the types of
documents that council staff should reasonably be expected to prepare.
The lack of such policies and procedures may create the perception that
council staff are withholding information that council members need to
fulfill their duties.
* Describing the Western Pacific Council as a policy-making body.
During the course of our review, we found that the council sometimes
describes itself as a "policy-making" body. However, while the council
plays a significant role in developing fishery management policy, it
does not have the authority to approve or authorize such policy.
Instead, the Secretary of Commerce is ultimately responsible for the
management, conservation, and protection of living marine resources in
federal waters. For this reason, describing itself as a policy-making
body could cause confusion.
Conclusions:
The conflicts that arise between regional fishery management councils
and stakeholder groups can be exacerbated by a lack of transparency in
council actions, which, in turn, can lead to perceptions of misconduct
and mismanagement. In the case of the Western Pacific Council, the
council's failure to maintain documentation of all requests for
information from federal and state legislators--a generally allowable
use of the council's grant funds--and its decision to distribute cash
per diem payments to some meeting participants--even if properly
accounted for--may have contributed to the allegations of misconduct.
Enhanced transparency regarding council activities and policies would
help facilitate informed stakeholder participation in the council
process, provide checks against misconduct and mismanagement, and help
protect against unfounded accusations of impropriety.
Recommendations for Executive Action:
To help ensure compliance with OMB Circular A-122 requirements
governing federal grant recipients, we recommend that the Administrator
of NOAA direct the Western Pacific Fishery Management Council to
maintain documentation of all requests for information from federal and
state legislators.
To reduce the risk of loss or unauthorized use associated with
reimbursing meeting participant expenses with cash, we recommend that
the Administrator of NOAA direct the Western Pacific Fishery Management
Council to pay per diem costs for meeting participants by check to the
extent practicable.
To improve the transparency of the council's operations, we recommend
that the Administrator of NOAA work with the Chair of the Western
Pacific Fishery Management Council to implement actions such as:
* notifying NOAA regional counsel before meeting with federal or state
legislators or testifying before one of their committees;
* asking NOAA regional counsel to provide an annual briefing to council
members and staff on the rules governing their conduct, including
limits on contacts with legislators;
* adopting procedures that require council meeting minutes to include
not only a council member's statement of recusal from voting, but also
the nature of the financial interest that would be affected;
* maintaining current and archived copies of documents available for
public inspection, such as the council's meeting minutes and briefing
book materials, on the council's Web site;
* developing and making available the council's policy regarding the
types of records that are available to the public at the council
office, the types of records that are available through a FOIA request,
and the procedures for reviewing or requesting these records;
* communicating directly with a council member who has requested
council information and, if necessary, negotiating a timely response so
that council members needing information do not have to file FOIA
requests; and:
* clarifying the council's advisory role by describing itself as a body
that develops fishery management policy for review and approval by the
Secretary of Commerce.
Agency and Other Interested Party Comments and Our Evaluation:
We provided a draft copy of this report to the Department of Commerce
and the Western Pacific Council for their review and comment. We
received a written response from the Secretary of Commerce that
includes comments from NOAA. We also received comments from the
council. NOAA agreed with all of our recommendations and said it will
take action to address the concerns identified. NOAA also provided
technical comments, which we incorporated into the report as
appropriate. The Western Pacific Council's written response consisted
of technical and editorial comments, which we incorporated as
appropriate. NOAA's and the council's comments are presented in
enclosures I and II.
As agreed with your office, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies of this report
to the Secretary of Commerce, the Administrator of NOAA, the Director
of the National Marine Fisheries Service, the Chair of the Western
Pacific Fishery Management Council, and interested congressional
committees. In addition, the report will be available at no charge on
the GAO Web site at [hyperlink, http://www.gao.gov].
If you or your staff have any questions about this report, please
contact David Maurer at (202) 512-3841 or maurerd@gao.gov, or Susan
Ragland at (202) 512-9406 or raglands@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. In addition to the individuals named
above, Stephen Secrist, Assistant Director; Glenn Slocum, Assistant
Director; Antoinette Capaccio; Daniel Egan; Richard Johnson; Susan
Malone; Alison O'Neill; and Brian Tremblay made key contributions to
this report.
Sincerely yours,
Signed by:
David C. Maurer:
Acting Director, Natural Resources and Environment:
Signed by:
Susan Ragland:
Director, Financial Management and Assurance:
Enclosures (2):
[End of section]
Enclosure I: Comments from NOAA:
Note: A GAO comment supplementing those in the report text appears at
the end of this enclosure.
United States Department Of Commerce:
Office of the Secretary:
Washington, D.C. 20230:
May 12, 2009:
Mr. David C. Maurer:
Director, Natural Resources and Environment:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Maurer:
Thank you for the opportunity to review and comment on the Government
Accountability Office's draft report entitled Fisheries Management:
Alleged Misconduct of Members and Staff of the Western Pacific Fishery
Management Council (GAO-09-508R). On behalf of the Department of
Commerce, I enclose the National Oceanic and Atmospheric
Administration's programmatic comments on the draft report.
Sincerely,
Signed by:
Gary Locke:
Enclosure:
[End of letter]
Department of Commerce:
National Oceanic and Atmospheric Administration:
Comments on the Draft GAO Report Entitled: Fisheries Management:
Alleged Misconduct of Members and Staff of the Western Pacific Fishery
Management Council (GAO-09-508R - May 2009):
General Comments:
The Department of Commerce's National Oceanic and Atmospheric
Administration (NOAA) appreciates the opportunity to review the
Government Accountability Office's (GAO) draft report. As indicated
below, NOAA concurs with all three draft report recommendations and
will take action to address the concerns identified.
NOAA Response to GAO Recommendations:
Recommendation 1: "To help ensure compliance with OMB Circular A-122
requirements governing federal grant recipients, we recommend that NOAA
direct [the Western Pacific Fishery Management Council [WESPAC]) to
maintain documentation of all requests for information from federal and
state legislators."
NOAA Response: NOAA agrees with the recommendation and will direct
WESPAC to maintain documentation of all requests for information from
federal and state legislators.
Recommendation 2: "To reduce the risk of loss or unauthorized use
associated with reimbursing meeting participant expenses with cash, we
recommend that NOAA direct WESPAC to pay per diem costs for meeting
participants by check to the extent practicable."
NOAA Response: NOAA agrees with the recommendation and will direct
WESPAC to pay per diem costs for meeting participants by check to the
extent practicable.
Recommendation 3: "To improve the transparency of WESPAC's operations,
we recommend that NOAA work with WESPAC to implement actions such as:
* Notifying NOAA regional counsel before meeting with federal or state
legislators or testifying before one of their committees.
* Asking NOAA regional counsel to provide an annual briefing to council
members and staff on the rules governing their conduct, including
limits on contacts with legislators.
* Adopting procedures that require council meeting minutes to include
not only a council member's statement of recusal from voting, but also
the nature of the financial interest that would be affected.
* Maintaining current and archived copies of the council's
administrative record, including council meeting minutes, on the
council's Web site.
* Developing and making available the council's policy regarding the
types of records that are available to the public at the council
office, the types of records that are available through a FOIA request,
and the procedures for reviewing or requesting these records.
* Communicating directly with a council member who has requested
council information and, if necessary, negotiating a timely response so
that council members needing information do not have to file FOIA
requests.
* Clarifying the council's advisory role by not describing itself as a
policy-making body."
NOAA Response: NOAA agrees with the recommendation and will work with
WESPAC, taking appropriate actions to improve the transparency of
WESPAC's operations. GAO should note, however, that an "administrative
record" in a court case may include a large amount of background
information not typically posted on agency or Council Web sites. NOAA
views GAO's references to "the administrative record" as pertaining to
those documents provided to the Council (i.e., Fishery Management
Plans, amendments, and analysis, including drafts for Council votes,
records of discussion, and votes (i.e., minutes)), but not necessarily
internal staff background documents or other documents that may or may
not be part of a litigation administrative record. [See comment 1]
GAO Comment:
1. We revised the text to make clear that we were suggesting that the
council maintain current and archived copies of documents available for
public inspection, such as the council's meeting minutes and briefing
book materials, on the council's Web site.
[End of enclosure 1]
Enclosure II: Comments from the Western Pacific Fishery Management
Council:
Western Pacific Regional Fishery Management Council:
A Council Authorized by the Magnuson Fishery Conservation and
Management Act of 1976:
1164 Bishop Street:
Suite 1400:
Honolulu, Hawaii 96813:
Telephone: (808) 522-8220:
Fax: (808) 522-1226:
[hyperlink, http://www.wpcouncil.org]
May 5, 2009:
David C. Maurer:
Director: Natural Resources and Environment:
Susan Ragland: Financial Management and Assurance:
US Government Accountability Office:
441 G St., NW:
Washington, DC 20548:
Dear Directors Maurer and Ragland:
Thank you for the opportunity to review the draft GAO report that
responds to allegations by some conservation advocacy organizations of
misconduct by the Western Pacific Regional Fishery Management Council.
We propose a few edits which we believe clarify some of the findings in
the report (which we have enclosed).
First is a request to replace the acronym "WESPAC" throughout the
document with the word "Council" or the acronym "WPRFMC," as we refer
to our organization using either of these two terms and do not
generally use the acronym WESPAC.
Second, we have made some edits to the Results in Brief section. We
suggest that this section include a summary of the Conflicts of
Interest findings as this issue is one of the four items that Rep.
Waxman asked to be reviewed. We also request that some additional text
from the main body of the report be added to the Results in Brief so
this section clearly reflects the report's findings. It is likely that
most people and the media will focus only on this part of the report.
Third, there are a few areas in the main part of the report that could
be clarified, and we have suggested revisions to the text.
Fourth, the Council requests that a list of the interested parties be
included in the report.
We respectfully request that you and your staff consider these
comments. We will be pleased to respond to any questions or comments
you may have on our review of the draft report.
Sincerely,
Signed by:
Sean Martin:
Council Chair:
Enclosure:
cc: David Maurer, Susan Ragland, Glenn Slocum:
[End of enclosure 2]
Footnotes:
[1] Federal waters typically extend from 3 to 200 nautical miles off
the coast of the United States and its possessions and trust
territories.
[2] In addition, the council has 3 nonvoting members representing the
U.S. Fish and Wildlife Service, the U.S. Coast Guard, and the U.S.
Department of State.
[3] OMB Circular A-122, Cost Principles for Non-Profit Organizations,
has been promulgated as a regulation at 2 CFR Part 230.
[4] Grassroots lobbying refers to indirect efforts to influence
legislation by preparing, distributing, or using publicity, or by
urging people to contribute to or participate in any mass
demonstration, march, rally, fundraising drive, lobbying campaign, or
letter writing or telephone campaign.
[5] Consistent with the views of the Justice Department's Office of
Legal Counsel in similar circumstances, the Commerce Department does
not consider public council members to be subject to the regulations
(found at 5 CFR Part 2635) governing the ethical conduct of executive
branch employees because they are not under the supervision of a
federal officer or employee.
[6] On December 4, 2000, President Clinton signed Executive Order
13178, establishing the Northwestern Hawaiian Islands Coral Reef
Ecosystem Reserve. The executive order set forth and asked for comment
on certain conservation measures, including a prohibition on commercial
fishing in specified areas within the reserve. After a 30-day comment
period, President Clinton issued Executive Order 13196, which amended
Executive Order 13178 and, among other things, made permanent those
fishing closures.
[7] The Office of the Pacific Islands Regional Counsel was established
in November 2005.
[8] OMB Circular A-133 sets forth standards for obtaining consistency
and uniformity among federal agencies for the audit of states, local
governments, and nonprofit organizations expending federal awards.
[9] We reviewed a judgmental sample of transactions to obtain a better
understanding of the extent and nature of council expenditures, and the
design and operation of internal controls in place concerning the
receipt and expenditure of grant funds. Our review was based upon
limited procedures. The results are not generalizable and would not
necessarily identify all instances of inappropriate accounting for
government funds.
[10] GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]
(Washington, D.C.: November 1999).
[11] See footnote 9, above.
[End of section]
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